Buono v. Kempthorne

• Citation: 527 F.3d 758
• Decision Date: 06 September 2007
• Docket Number: No. 05-55852.,05-55852.
• Parties: Frank BUONO, Plaintiff-Appellee, v. Dirk KEMPTHORNE,<SMALL><SUP>*</SUP></SMALL> Secretary of the Interior, in his official capacity; Jonathan B. Jarvis, Regional Director, Pacific West Region, National Park Service, Department of the Interior, in his official capacity; Dennis Schramm, Superintendent, Mojave National Preserve, National Park Service, Department of the Interior, in his official capacity, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

527 F.3d 758

Frank BUONO, Plaintiff-Appellee, v. Dirk KEMPTHORNE,^* Secretary of the Interior, in his official capacity; Jonathan B. Jarvis, Regional Director, Pacific West Region, National Park Service, Department of the Interior, in his official capacity; Dennis

Schramm, Superintendent, Mojave National Preserve, National Park Service, Department of the Interior, in his official capacity, Defendants-Appellants.

No. 05-55852.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2007.

Filed September 6, 2007.

Amended May 14, 2008.

Sue Ellen Wooldridge, Kathryn E. Kovacs, United States Department of Justice, Washington, D.C., for the defendants-appellants.

Peter J. Eliasberg, Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, CA, for the plaintiff-appellee.

Steven W. Fitschen, Colleen M. Holmes, The National Legal Foundation, Virginia Beach, VA, for amicus curiae The National Legal Foundation.

Appeal from the United States District Court for the Central District of California; Robert J. Timlin, Senior Judge, Presiding. D.C. No. CV-01-00216-RT.

Before: B. FLETCHER and M. MARGARET McKEOWN, Circuit Judges, and RONALD M. WHYTE,^** District Judge.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed September 6, 2007, slip op. 11793, and appearing at 502 F.3d 1069, is amended as follows:

1. At slip op. 11816 [502 F.3d at 1082], footnote 13, delete "Although the Seventh Circuit adopted a presumption that "a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion" in the absence of "unusual circumstances," Marshfield, 203 F.3d at 491, we decline to adopt such presumption. The Supreme Court's Establishment Clause jurisprudence recognizes the need to conduct a fact-specific inquiry in this area" and substitute: "The Seventh Circuit stated that "[a]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion. We are aware, however, that adherence to a formalistic standard invites manipulation. To avoid such manipulation, we look to the substance of the transaction as well as its form to determine whether government action endorsing religion has actually ceased." Marshfield, 203 F.3d at 491. Read as a whole, the Seventh Circuit position looks at the issue on a transaction-by-transaction basis. We agree with this approach. However, to the extent that Marshfield can be read to adopt a presumption of the effectiveness of a land sale to end a constitutional violation, we decline to adopt such a presumption. The Supreme Court's Establishment Clause jurisprudence recognizes the need to conduct a fact-specific inquiry in this area."

With this amendment, the panel has voted to deny Defendants-Appellants petition for panel rehearing. Judge McKeown votes to deny the petition for rehearing en banc and Judges B. Fletcher and Whyte so recommend.

The full court has been advised of Defendant-Appellant's petition for rehearing en banc, and a judge of this court requested a vote on whether this case should be reheard en banc; however, a majority of the active judges did not vote in favor of en banc consideration. Fed. R.App. P. 35. Judge Reinhardt was recused from considering the en banc issues in this case and did not participate in the court's decision.

The petition for panel rehearing and the petition for rehearing en banc are denied. No further petitions for rehearing will be entertained.

O'SCANNLAIN, Circuit Judge, dissenting from the denial of rehearing en banc, joined by TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges:

The opinion in this case announces the rule that Congress cannot cure a government agency's Establishment Clause violation by ordering sale of the land upon which a religious symbol previously was situated. Because such a novel rule contravenes governing Supreme Court precedent, creates a split with the Seventh Circuit on multiple issues, and invites courts to encroach upon private citizens' rights under both the speech and religion clauses of the First Amendment, I respectfully dissent from our order rejecting rehearing en banc.

I

Seventy-four years ago, the Veterans of Foreign Wars ("VFW") erected atop Sunrise Rock in the Mojave National Preserve¹ a memorial to veterans who died in World War I. Buono v. Kempthorne, 502 F.3d 1069, 1072 (9th Cir.2007) ("Buono IV"). The memorial took the form of a cross, by which stood a wooden sign stating, "The Cross, Erected in Memory of the Dead of All Wars," and "Erected 1934 by Members of Veterans of Fore[ig]n Wars, Death Valley post 2884." Id. The sign has since disappeared, and the cross has been replaced several times, most recently in 1998. Id. Each incarnation of the memorial was created and installed by private citizens; there is no indication in the record that the citizens ever received permission from the National Park Service ("NPS") to construct the memorial. Id.

In 2002, Frank Buono, a retired NPS employee, brought suit against the Department of the Interior, seeking to enjoin the continued presence of the cross on federal land. Buono v. Norton, 212 F.Supp.2d 1202, 1204 (C.D.Cal.2002) (Buono I). The district court determined that the presence of the cross on federal land violated the Establishment Clause, and entered an injunction ordering the government to remove the cross. Id. at 1217.

During the pendency of the appeal from Buono I, Congress enacted legislation ordering the Secretary of the Interior to convey a one-acre parcel of land including Sunrise Rock to the VFW in exchange for a parcel of privately-owned land of equal value. Pub.L. No. 108-87, § 8121(a)-(f), 117 Stat. 1054, 1100 (2003) ("Section 8121"). The transfer was conditioned on the VFW's obligation to "maintain the conveyed property as a memorial commemorating United States participation in World War I and honoring the American veterans of that war."² § 8121(e). Under the terms of the statute, the government retained a reversionary interest in the property "[i]f the Secretary determines that the conveyed property is no longer being maintained as a war memorial." Id. Critically, however, section 8121 did not mention the existence of a cross on Sunrise Rock, nor did it require that the VFW retain the cross as part of the memorial.

The agreement also provided that "the Secretary shall continue to carry out the responsibilities of the Secretary under" Pub.L. No. 107-117 § 8137, 115 Stat. 2230 (2002). § 8121(a). Section 8137 required the Secretary to "use not more than $10,000 of funds available for the administration of the Mojave National Preserve to acquire a replica of the original memorial plaque and cross placed at the national World War I memorial." Section 8137 does not confer any other authority or obligation on the government.

Soon after the enactment of section 8121, but before the land exchange had been carried out, we affirmed the district court's determination that the presence of the cross on federal land violated the Establishment Clause. Buono v. Norton, 371 F.3d 543, 550 (9th Cir.2004) ("Buono II"). However, we expressly refused to consider "whether a transfer completed under section 8121 would pass constitutional muster." Id. at 546.

Following Buono II, the government completed the land exchange. Buono then brought the present action, arguing that section 8121 violated the district court's injunction or, in the alternative, that the land transfer itself violated the Establishment Clause. See Buono v. Norton, 364 F.Supp.2d 1175, 1177 (C.D.Cal.2005) ("Buono III"). The district court held that the government continued to violate the injunction following the land transfer, even though ownership of the cross and the underlying land had been transferred to a private party. See id. at 1182. Significantly, the district court therefore concluded that "it need not consider [Buono's] other contention that the land transfer itself is an independent violation of the Establishment Clause." Id. at 1182 n. 8.

The Buono IV panel affirmed, holding that the pre-divestment injunction remained enforceable because the government continued impermissibly to endorse religion despite the transfer of Sunrise Rock. Buono IV, 502 F.3d at 1086. The panel determined that such endorsement existed because: (1) the government purportedly retained control and oversight over Sunrise Rock, id. at 1082-83; (2) the government failed to hold an open bidding process for the land, id. at 1084-85; (3) the government purportedly had engaged in "long-standing efforts to preserve and maintain the cross," id. at 1085; and (4) the government continued to endorse religion by permitting the cross at the site, id. at 1085-86.³

II

Buono IV squarely contradicts two Seventh Circuit opinions holding that "[a]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion." Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491 (7th Cir.2000) (upholding the sale of a portion of a municipal park on which stood a statue of Jesus with arms extended); see also Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 702-03 (7th Cir.2005) (upholding the sale of a portion of a municipal park with monument of Ten Commandments). The Seventh Circuit properly applied the principle that once publicly-owned land is transferred to a private party, government action ceases, and the Establishment Clause violation necessarily goes with it. Marshfield, 203 F.3d at 491 ("Because of the difference in the way we treat private speech and public speech, the determination of whom we should impute speech onto is critical.").

The "unusual circumstances" exception noted by the Seventh Circuit therefore merely incorporated well-established Supreme Court precedent concerning when state action may be imputed to private parties despite the transfer of once-public...